Leab v. S & H MINING CO.Leab v. S & H MINING CO.
- Reporters:
- ,
- Before:
- Birch
OPINION
ADOLPHO A. BIRCH, JR., J.,delivered the opinion of the court,
in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined.
In this workers’ compensation appeal, the employer raises several issues. Primarily, it contends that the trial court erred in awarding benefits pursuant tu
I. Facts and Procedural History
The employee, Roy L. Leab, was 58 years old at the time of trial. He had a limited education, having left school during the eighth grade, and his work history consisted entirely of manual labor. For approximately 33 years, he had worked at various jobs in the underground coal mining industry. In October 1997, Leab was employed by S & H Mining Company (S & H) as a roof bolt operator, a position which involves the insertion of bolts into the roof of a mine shaft in order to provide structural support. In performing this job, he was required to lift heavy bundles of metal plates. While lifting one of these bundles, he felt a sharp pain in his lower back. He reported the injury and eventually was treated by orthopedic surgeon Jean Francois Reat, M.D.
Reat examined Leab and ordered epidural steroid injections to alleviate his pain. Though the injections offered some relief, Leab continued to suffer from “mechanical low back pain.” Consequently, in April 1999, Reat performed decompression and fusion surgery, in which a piece of bone was taken from Leab’s left hip and inserted into his lower back. After the surgery, Leab’s condition improved, though he continued to experience low back stiffness. He also suffered from intermittent left leg pain as a result of a bone graft taken from his hip.
In July 1999, Leab began to experience numbness in his extremities. Examinations revealed degenerative disk bulges in his cervical spine, as well as a peripheral polyneuropathy which affected the motor and sensory functions of his upper extremities. Reat concluded, however, that neither the polyneuropathy nor the degenerative condition of the cervical spine was work-related.
By March 2000, Leab had reached maximum medical improvement. Reat assigned him a 12 percent whole person anatomical impairment rating based on the symptoms causally related to the work injury. This impairment rating did not take into account the polyneuropathy or degenerative cervical disk condition. Reat further recommended that Leab not return to heavy manual labor; rather, he suggested that Leab refrain from activities involving regular bending, stooping, or lifting more than 20 pounds on an infrequent basis or 10 pounds frequently. Leab never returned to employment.
Leab sought workers’ compensation benefits for his back injury, and a trial was conducted on July 14, 2000. At trial, S & H admitted that Leab had sustained a compensable injury and stated that the only issue before the trial court was the nature and extent of vocational disability. In addition to lay testimony, both sides presented testimony from vocational experts regarding this issue.
Leab offered the deposition of vocational consultant Rodney E. Caldwell, Ph.D. Caldwell testified that Leab scored at the eighth-grade level for reading and the sixth grade level for arithmetic on the Wide Range Achievement Test, which measures academic ability, and that he scored below the first percentile on the Minnesota Manual Dexterity Test. Caldwell opined that Leab would be eliminated from 50 to 52 percent of jobs in the local
S & H offered the testimony of vocational rehabilitation counselor Edward Smith, M.S. Smith testified that he had interviewed Leab, reviewed his medical records, and conducted a job search survey to identify available jobs in the local area. He did not, however, administer any tests to Leab. Smith testified that Leab would be capable of working in a light-duty capacity and that there were “hundreds of jobs within a 50 mile radius” available to a person with Leab’s disabilities and education.
On July 26, 2000, the trial judge rendered his opinion telephonically, by way of a conference call to the attorneys for the parties.
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A written Workers’ Compensation Judgment, prepared and signed by the parties, was submitted to the trial court and was entered on October 16, 2000. The judgment recited the trial court’s finding that Leab had sustained an 85 percent disability to the body as a whole as a result of his work-related injury. The judgment further declared that Leab (1) lacked a high school diploma or general equivalency diploma; (2) had no reasonably transferable job skills from pri- or vocational background and training; and (3) had no reasonable employment opportunities available locally considering his permanent medical condition. Pursuant to
S & H appealed, and the Supreme Court Special Workers’ Compensation Appeals Panel held that the trial court erred in granting benefits in excess of the multiplier provision because Leab failed to sufficiently fulfill the requirements of
We granted Leab’s Motion for Review by the entire Supreme Court pursuant to
II. Standard of Review
In workers’ compensation cases, review of the trial court’s findings of fact is de novo, accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise.
See
Issues of statutory construction are questions of law to which the de novo standard with no presumption of correctness applies. See Perry v. Sentry Insurance Co., 938 S.W.2d 404, 406 (Tenn.1996). When construing a statute, our goal is “to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995). Our interpretation of the Workers’ Compensation Act is guided by “a consideration which is always before us in workers’ compensation cases that these laws should be rationally but liberally construed to promote and adhere to the Act’s purposes of securing benefits to those workers who fall within its coverage.” Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 926 (Tenn.1980).
III. Analysis
A. Requirements of
Both TenmCode Ann.
[I]n cases ... where an injured employee is eligible to receive permanent partial disability benefits ... and the pre-injury employer does not return the employee to employment at a wage equal to or greater than the wage the employee was receiving at the time of injury, the maximum permanent partial disability award that the employee may receive is six (6) times the medical impairment rating determined pursuant to the provisions of the American Medical Association Guides to the Evaluation of Permanent Impairment ..., the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment ..., or in cases not covered by either of these, an impairment rating by any appropriate method used and accepted by the medical community.
TenmCode Ann.
Notwithstanding any provision of this chapter to the contrary, the trial judge may award employees permanent partial disability benefits, not to exceed four hundred (400) weeks, in appropriate cases where permanent medical impairment is found and the employee is eligible to receive the maximum disability award.... In such cases the court ... must make a specific documented finding, supported by clear and convincing evidence, of at least three (3) of the following four (4) items:
(1) The employee lacks a high school diploma or general equivalency diploma or the employee cannot read or write on a grade eight (8) level;
(2) The employee is fifty-five (55) years of age or older;
(3) The employee has no reasonably transferable job skills from prior vocational background and training; and
(4) The employee has no reasonable employment opportunities available locally considering the employee’s permanent medical condition.
In this case, Leab has suffered a permanent partial disability to the body as a whole and has not returned to work. Reat assigned him an impairment rating of 12 percent. Thus, the multiplier provision will limit his recovery to a maximum of 72 percent unless he satisfies three of the four requirements of
Primarily, S & H contends that subsection (1) is not satisfied. It acknowledges that Leab lacks a high school diploma or general equivalency diploma but emphasizes Caldwell’s testimony that Leab is able to read on an eighth-grade level. In essence, it asserts that subsection (1) requires proof of inability to read on an eighth-grade level and lack of a diploma. We conclude that this contention is without merit.
The statute uses the word “or” to divide the element involving reading ability from the elements involving diplomas. It is generally accepted that “the word ‘or,’ as used in a statute, is a disjunctive article indicating that the various members of the sentence are to be taken separately.” 73 Am.Jur.2d Statutes § 241 (1974). Thus, the clear implication of the statute is that the employee must satisfy either of its requirements — lack of a high school or general equivalency diploma or inability to read on an eighth-grade level.
We are unpersuaded by S & H’s assertion, citing
Knoxville v. Gervin,
that the word “and” and the word “or” “are interchangeable in the construction of statutes when necessary to carry out the legislative intent.” 169 Tenn. 532, 89 S.W.2d 348, 352 (1936).
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While such an interpre
Moreover, the interpretation advocated by S & H would be inconsistent with this Court’s decision in
Peace v. Easy Trucking Co.,
38 S.W.3d 526 (Tenn.2001). In examining the requirements of
S & H next contends that the trial court erred in finding that Leab satisfied subsection (3) of the statute, requiring proof that he had “no reasonably transferable job skills from prior vocational background and training,” and subsection (4), requiring proof that he had “no reasonable employment opportunities available locally considering [his] permanent medical condition.” The trial court considered extensive evidence on both of these elements, including the testimony of Leab and the vocational experts offered by the parties. Although both elements were the subject of controversy at trial, we conclude that S & H has failed to demonstrate that the evidence preponderates against the trial court’s findings. Accordingly, we affirm the trial court’s conclusion that Leab is eligible to receive benefits pursuant to TenmCode Ann.
B. Documentation of Clear and Convincing Evidence
S
&
H next asserts that the trial court erred in failing to document clear and convincing evidence to support its award of benefits. As this Court recognized in
Peace v. Easy Trucking Co.,
the Workers’ Compensation Act requires the trial court to make a “specific documented finding, supported by clear and convincing evidence,” before awarding benefits in excess of the multiplier provision. 38 S.W.3d 526, 532 (Tenn.2001) (quoting
The decision whether clear and convincing evidence exists to support the requirements of
C. Lump Sum Award of Benefits
Finally, S & H contends that the trial court erred in commuting Leab’s award of benefits to a lump sum because the evidence does not show that a lump sum award was in Leab’s best interest.
Under
Leab’s counsel concedes that he introduced little evidence concerning whether a lump sum award would be in Leab’s best interest. He asserts, however, that his failure to introduce evidence was a direct result of repeated conduct by S & H implying that it would agree to a lump sum award of benefits. At the opening of trial, S & H stipulated that the “only issue” was the extent of Leab’s disability, despite a specific request in Leab’s complaint that benefits be commuted to a lump sum. At the conclusion of the hearing, S & H’s counsel volunteered in closing arguments that Leab could manage his funds and that there would be “no problem” with a lump sum award. Finally, counsel for S & H reviewed the proposed judgment order commuting benefits to a lump sum before it was submitted to the trial court, and the order was approved with no objection. Pointing to these circumstances, Leab contends that S & H has waived this issue on appeal.
This Court, however, has held under similar circumstances that the trial court’s duty to ensure a lump sum award would be in the employee’s best interest is mandatory and is not subject to the waiver doctrine.
See Duckworth v. Globe Bus. Furniture, Inc.,
806 S.W.2d 526, 526-27 (Tenn.1991). In
Duckworth,
as in this case, we recognized that the deficiencies in the proof offered by the employee “may well be attributable to the employer’s apparent acquiescence in the award of a lump sum at the trial court level.”
Id.
at 527. Though we noted that “[i]n the usual civil action, a party’s failure to raise objection under circumstances such as those in this case would almost certainly be held to bar relief on appeal,” we nonetheless concluded that appropriateness of a lump sum award is an issue “which must be ad
In this case, the trial court’s judgment recites that Leab would be able to manage his funds, but the judgment is silent regarding whether a lump sum would be in Leab’s best interest. Thus, the statutory prerequisites for commutation of the award have not been satisfied. Accordingly, on remand, we direct the trial court to make affirmative findings on the record regarding whether commutation of the benefit award to a lump sum would be in Leab’s best interest. 4 If the trial court is of the opinion that additional evidence is essential to the proper determination of this issue, it shall be authorized to admit such evidence as it deems necessary.
IV. Conclusion
For the foregoing reasons, we hold that the evidence does not preponderate against the trial court’s decision to award benefits pursuant to
Costs on appeal are taxed equally to the parties, for which execution may issue if necessary.
WILLIAM M. BARKER, J, not participating.
Notes
. No transcript of that opinion has been preserved in the record on appeal.
. 38 S.W.3d 526 (Tenn.2001).
. Notably, S & H would have us hold that the word “or” should be read as “and” in this case, but apparently it would apply different statutory constructions under different facts. In cases such as this one, where the employee reads at an eighth-grade level, S & H contends that the legislature intended to use “and” instead of “or,” so that the subsection is unsatisfied even if the employee lacks a diploma. On the other hand, in cases where the employee cannot read at an eighth-grade level, S & H apparently would contend that the legislature intended to use “or,” for it asserts that proof of inability to read satisfies
. As in Duckworth, we feel it necessary to emphasize that “[i]n concluding that a remand is necessary, we do not wish to be seen as rewarding the employer‘s lack of diligence in this regard. Our concern, instead, is for the protection of the employee and his rights under the compensation statute.” Id. at 527.